Punjab-Haryana High Court
Anurag Surana vs State Of Punjab on 9 December, 2022
CRM-M-7078-2018 -1-
225
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-7078-2018
Date of decision : 09.12.2022
Anurag Surana
...Petitioner
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Gaurav Chopra, Sr. Advocate with
Mr. Nitin Thatai, Advocate and
Ms. Seerat Saldi, Advocate and
Ms. Meghna Garg, Advocate for the petitioner.
Mr. Iqbal S. Mann, DAG, Punjab.
****
VIKAS BAHL, J. (ORAL)
This is a petition filed under Section 482 of Cr.P.C. for
quashing of complaint bearing No.4151 dated 20.04.2017 registered
under Sections 3K(1), 17, 18, 29, 33 of the Insecticides Act, 1968 read
with Rule 27(5) of the Insecticides Rules, 1971 (Annexure P-1) and also
summoning order dated 20.04.2017 (Annexure P-2) passed by the Chief
Judicial Magistrate, Ludhiana alongwith all other consequential
proceedings arising therefrom.
Learned Senior Counsel for the petitioner has submitted that
a perusal of the complaint dated 20.04.2017 would show that the present
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petitioner has been shown to be the Responsible Director of the company
M/s P.I. Industries Limited, which company is the manufacturing
company.
Learned Senior Counsel for the petitioner has further
highlighted the fact that there are other accused also who have been made
party and one Rahim Aglodia has also been made as an accused and is
stated to be the Responsible Quality Control Senior Executive of the
company M/s P.I. Industries Limited. Accused No.1 is stated to be M/s PI
Industries Limited which has been impleaded through Sh. Suresh Kumar
Sharma, Godown Incharge and the responsible person for conduct of
business of the company at Ludhiana. It is further submitted that in the
present case, as per the complaint, the premises of M/s PI Industries
Limited were inspected on 24.07.2014 and vide analysis report ated
01.08.2014, it was found that there was 9.02% active ingredient contents
of Phorate instead of Phorate 10% CG and hence, it was found that the
sample procured during inspection did not confirm to IS specifications. It
is contended that a perusal of para 23 of the complaint would show that
while giving the details of the persons who were responsible officials on
behalf of the manufacturing company, reference was made to statement
No.1 of the licence of the company and copy of the same was annexed
alongwith the complaint. It is highlighted that in para 24, further
reference was made to the affidavits submitted by the present petitioner
and also by Rahim Adlodia for the compliance of Section 33 of the
Insecticides Act, 1968.
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Learned Senior Counsel for the petitioner has pointed out that
on the basis of the said documents, the conclusion drawn by the
complainant in para 24 was to the effect that it was just possible that the
said insecticides might have been manufactured, sold, stocked and
distributed and offered for sale with the consent or connivance or due to
neglect of the accused officials in performing their official duties while
working in company. It is further submitted that since, the documents
which have been taken into consideration for implicating the present
petitioner are the aforesaid licence and the affidavit submitted by the
petitioner, thus, reference to the same is required to be necessarily made.
It is argued that the licence which had been annexed alongwith the
complaint has also been annexed by the respondent-State alongwith its
reply as Annexure R-4 (Page 30 of the reply) and a perusal of the said
licence would show that in Clause 4, it has been specifically mentioned
that the list of responsible persons is contained in statement No.1. At page
32 of the reply, the list of responsible persons has been given in which the
said Rahim Aglodia at Sr. No.4 has been designated as Quality Control
Manager and is stated to be responsible for the quality control whereas
the present petitioner is shown at Sr. No.1 and although, he is designated
as the Director but the corresponding column under the heading
"Responsible" is left blank. It is further argued that from the said
document, it is clear that the said Rahim Aglodia was responsible for
quality control of the products manufactured by the manufacturing
company and the present petitioner had no role, responsibility or
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expertise regarding the same. Reference has also been made to affidavit
dated 10.06.2011 (Annexure P-9) (at page 63 of the petition) which was
also annexed alongwith the complaint so as to implicate the present
petitioner. It is contended that a perusal of the said affidavit would show
that the only responsibility which has been taken by the petitioner was
that in case, Mr. Rahim Aglodia, Quality Control Manager, responsible
for quality control and Mr. S.K. Sharma, Godown Incharge and
responsible for conduct of business under Section 33 of the Insecticides
Act, 1968 "leaves/retires/left the firm", then the petitioner would
nominate and authorize alternate persons and in case, the authorized or
nominated persons did not appear, then he would take the responsibility.
It is further contended that licence was valid from 01.01.2013 to
31.12.2014 and as per the said licence, Rahim Aglodia was duly
nominated as the person responsible for quality control and thus, on the
date when the inspection was carried out i.e. on 24.07.2014, the said
Rahim Aglodia was very much responsible as he was working in the
aforesaid capacity with the manufacturing company on the said date.
Learned Senior Counsel for the petitioner has relied upon
judgment of the Hon'ble Supreme Court in "M/s Cheminova India Ltd.
& Anr. vs. State of Punjab & Anr." reported as 2021(3) RCR (Criminal)
750, to contend that once a person has been nominated as the person
responsible for quality control of the products, then a person who is a
Director of the company cannot be held responsible.
On the other hand, learned State Counsel, has opposed the
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present petition and has submitted that the fact that in the list of
responsible persons, the name of the petitioner has also been mentioned
and the fact that the petitioner was also a Director of the company at the
time of inspection, would show that the petitioner was also responsible
for quality of the insecticides in question and cannot wash his hands of
the said liability by saying that another person had been appointed as the
person responsible for quality control.
This Court has heard the learned counsel for the parties and
has perused the record.
On 19.02.2018, notice of motion was issued in the present
case and on 12.10.2018, a Coordinate Bench of this Court was pleased to
grant an interim order in favour of the petitioner which has continued till
date. Reply has also been filed by the respondent.
The Hon'ble Supreme Court of India in the case of M/s
Cheminova India Ltd's case (supra) has held as under:-
"Criminal Appeal No.750 of 2021 (Arising out of SLP (Crl.)
No.4144 OF 2020)
M/s. Cheminova India Limited & Anr. ...Appellant(s)
vs.State of Punjab & Ors. ...Respondent(s)
12. This Criminal Appeal is filed by the Petitioners / Accused
nos. 3 and 4 in CRM-M-12082-2016 (O & M) before the
High Court of Punjab & Haryana at Chandigarh, aggrieved
by the Order dated 12.05.2020. By the aforesaid order, the
Petitioners' application of quashing of Complaint No. 313
dated 19.08.2015, filed by the Respondent No.2 - The Quality
Control Inspector, Bhikhiwind, District Tarn Taran, Punjab
for offences under Sections 3(k)(i), 17, 18 and 33, punishable
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under Section 29 of the Insecticides Act, 1968 (for short, "the
Act"), was dismissed. The petition was allowed by the High
Court for other accused, who was working as Godown
Incharge, and quashed the proceedings.
xxx xxx xxx
16.......Learned Counsel has submitted that by making vague
and bald allegations, the appellants, who were the Company
and the Managing Director, are also sought to be
prosecuted.
16(a). It is submitted that unless there is a clear and
categorical averment in the complaint, indicating the role
played by the appellants, there cannot be any vicarious
liability on the 1st Appellant - Company and the 2nd
Appellant-Managing Director for commission of the alleged
offence. In support of his arguments, learned Senior Counsel
has placed reliance on the judgment of this Court in the case
of Managing Director, Castrol India Limited v. State of
Karnataka & Anr., 2018 (17) SCC 275, and also another
judgment of this Court in the case of Shiv Kumar Jatia v.
State of NCT of Delhi, 2019 (17) SCC 193.
xxx xxx xxx
17. On the other hand, learned Counsel, appearing for the
Respondents, has submitted that the High Court has
considered all the grounds raised by the petitioners and
rejected the petition to quash the proceedings. It is submitted
that the 2nd Appellant, being the Managing Director of the
1st Appellant -Company, which is the manufacturer of the
product in question, was rightly prosecuted by the 2nd
Respondent - Quality Control Inspector, Bhikhiwind, District
Tarn Taran, Punjab. Learned Counsel has submitted that
there is no violation of provision under Section 24 (4) of the
Act and Section 202 of the Code of Criminal Procedure and
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there are no grounds to interfere with the order of the High
Court. It is submitted that the Appellant No.2 was the
Managing Director of the Company at the relevant point of
time, as such, he is overall responsible person for quality
control of the products of the Company, as such, he is also
liable for prosecution.
18. Having heard the learned Counsels on both sides, we
have perused the impugned Order and other material placed
on record.
19. Section 33 of the Act deals with 'offences by companies'.
A reading of Section 33(1) of the Act, makes it clear that
whenever an offence under this Act has been committed by a
company, every person who at the time the offence was
committed, was in charge of, or was responsible to the
company for the conduct of the business of, the company, as
well as the company, shall be deemed to be guilty of the
offence and shall be liable to be proceeded against and
punished accordingly. In the case on hand, it is not in
dispute that on behalf of the 1st Appellant -Company, 2nd
Appellant - Managing Director has furnished an undertaking
dated 22.01.2013, indicating that Shri Madhukar R. Gite,
Manager of the Company, has been nominated in the
resolution passed by the Company on 28.12.2012 to be in
charge of and responsible to the said Company, to maintain
the quality of the pesticides manufactured by the said
Company and he was authorized to exercise all such powers
and to take all such steps, as may be necessary or expedient
to prevent the commission of any offence under the Act.......
......In view of the specific provision in the Act dealing with
the offences by companies, which fixes the responsibility and
the responsible person of the Company for conduct of its
business, by making bald and vague allegations, 2nd
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Appellant - Managing Director cannot be prosecuted on
vague allegation that he being the Managing Director of the
1st Appellant - Company, is overall responsible person for
the conduct of the business of the Company and of quality
control, etc. In the instant case, the Company has passed a
resolution, fixing responsibility of one of the Managers
namely Mr. Madhukar R. Gite by way of a resolution and the
same was furnished to the respondents by the 2nd Appellant
in shape of an undertaking on 22.01.2013. When furnishing
of such undertaking fixing the responsibility of the quality
control of the products is not in dispute, there is no reason or
justification for prosecuting the 2nd Appellant - Managing
Director, on the vague and spacious plea that he was the
Managing Director of the Company at the relevant time. A
reading of Section 33 of the Act also makes it clear that only
responsible person of the Company, as well as the Company
alone shall be deemed to be guilty of the offence and shall be
liable to be proceeded against. Though, the Managing
Director is overall incharge of the affairs of the company,
whether such officer is to be prosecuted or not, depends on
the facts and circumstances of each case and the relevant
provisions of law. Having regard to specific provision under
Section 33 of the Act, and the undertaking filed in the present
case, respondent cannot prosecute the 2nd Appellant herein.
Thus, we find force in the contention of Mr. Sidharth Luthra,
learned Senior Counsel, that allowing the prosecution
against 2nd Appellant - Managing Director is nothing but,
abuse of the process of law. At the same time, we do not find
any ground at this stage to quash the proceedings against
the 1st Appellant - Company.
xxx xxx xxx
21. As all other nominated/responsible persons of the
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Company are already accused in the Complaint, we are of
the view that there is no basis to proceed against the 2nd
Appellant - Managing Director to prosecute him for the
alleged offences.
Xxx xxx xxx
22. For the aforesaid reasons this Criminal Appeal is partly
allowed, so far as the Appellant No.2 - Managing Director is
concerned and the impugned Order of the High Court dated
12.05.2020, passed by the High Court of Punjab & Haryana
at Chandigarh in CRM-M-12082-2016 (O & M), is set aside.
Consequently, Complaint No. 313 dated 19.08.2015, filed by
the 2nd Respondent - Quality Control Inspector, Bhikhiwind
District Tarn Taran, Punjab, pending before the learned
Judicial Magistrate First Class, Patti stands quashed qua the
Appellant No.2 namely Mr. Pramod N. Karlekar / Accused
No.4. Further, it is made clear that the observations and
findings recorded in this order are made only for the
purpose of disposal of this Appeal arising out of quash
petition and it is open for the Trial Court to record its own
findings, based on the evidence on record, and take such
other steps, in accordance with law."
A perusal of the above said judgment would show that in
Criminal Appeal no.750 of 2021 which arose from the proceedings under
Section 482 Cr.P.C., which was allowed by the High Court qua the
Godown Incharge in the case therein and was dismissed qua accused no.3
and 4 and one of the accused, who had filed the said appeal, was the
Managing Director of the company in question therein. It was observed
that a reading of Section 33 of the Act makes it clear that only responsible
person of the Company as well as the Company alone, shall be deemed to
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be guilty of the offence and shall be liable to be proceeded against and
although, the Managing Director is overall incharge of the affairs of the
company but in the facts and circumstances of the said case as per which
Shri Madhukar R. Gite, was specifically nominated to be the incharge and
the responsible officer to maintain the quality of the pesticides
manufactured by the said company and after taking into consideration the
relevant provisions of law, it was observed that the proceedings against
the second appellant, i.e. Managing Director therein, were nothing but an
abuse of process of the Court and were thus, quashed qua second
appellant therein, however, the proceedings against the company were not
quashed. The ratio of law in the above said judgment would apply in the
present case also.
A perusal of the complaint would show that the petitioner is
stated to be Responsible Director of the company M/s PI Industries
Limited, which is the manufacturing company. Rahim Aglodia has also
been made an accused and he is stated to be the Responsible Quality
Control Senior Executive of the company M/s PI Industries Limited. The
company-M/s PI Industries Limited has been shown to be accused No.1
which has been impleaded through Suresh Kumar Sharma, Godown
Incharge and Responsible Person for conduct of business of the company
at Ludhiana. The premises of M/s PI Industries Limited was inspected on
24.07.2014 and from the analysis report dated 01.08.2014, it was found
that 9.02% active ingredient contents of Phorate instead of Phorate 10%
CG was contained in the sample of insecticides which was taken at the
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time of the said inspection and thus, it was found that the said sample did
not confirm to the IS specifications and accordingly, after following the
procedure, the present complaint was filed. The present complaint was
filed on 20.04.2017 and the summoning order was also passed on the said
date. A perusal of the complaint more so, paras 23 and 24 would show
that the persons who were stated to be responsible on behalf of the
manufacturing company were the present petitioner and Sh. Rahim
Aglodia. Reliance was primarily placed upon statement No.1 in the
licence of the company and also the affidavits which were submitted to
the authorities, including the affidavit submitted by the petitioner for the
compliance of Section 33 of the Insecticides Act, 1968 which were
annexed along with the complaint. In para 24 of the complaint, the
assertion made for initiating proceedings against the present petitioner
was not in affirmative terms. A perusal of the licence which was annexed
alongwith the complaint, which has also been annexed as Annexure R-4
(page 30 of the reply) would show that the same was valid from
01.01.2013 to 31.12.2014 and in column No.4(i) of the same, it was
mentioned that the list of responsible persons was contained in statement
No.1. At page 32 of the reply, the said list of the responsible persons has
been given. The said list is reproduced hereinbelow:-
"List of Responsible Persons
Sn. Name with Father's Designation Responsible
Name
Mr. Anurag Surana Director ---
1 S/o Sh. S.S. Surana
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Mr. Suresh Kumar Regional Conduct of
Sharma s/o Sh. Lekh Manager business and
Ram Sharma Godown
2 Incharge
Yogesh Dutt s/o Sh. Q.C. Executive Quality
3 Vishvambhar Dutt Unit: Udaipur Control
Sh. Rahim Aglodia s/o Q.C. Manager Quality
4 Sh. Noor Mohammad Unit: Panoli Control
A perusal of the above would show that Rahim Aglodia is
shown to be designated as the Quality Control Manager and is also stated
to be responsible for the quality control whereas the petitioner is
although, designated as Director but in the column of responsibility (titled
"Responsible"), nothing has been mentioned. The affidavit which is
stated to have been submitted by the petitioner in compliance of Section
33 of the Act, which was also a part of the complaint, is annexed as
Annexure P-9 (at page 63 of the petition). Relevant portion of the said
affidavit is reproduced here as under:-
"2. That I hereby undertake that in case, Mr. Rahim
Aglodia Quality Control Manager, responsible for quality
control and Mr. S.K. Sharma, Godown Incharge and
responsible for conduct of business under Section 33 of
the Insecticides Act, 1968. Leave/retires/left the firm, I
shall nominate and authorize alternate persons. In case,
authorized or nominated persons do not appear, I shall
take the responsibility."
A perusal of the above affidavit would show that the only
responsibility which the petitioner had undertaken was that in case Rahim
Aglodia, Quality Control Manager, who was responsible for quality
control and Mr. S.K. Sharma who was responsible for conduct of the
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business under Section 33 of the Insecticides Act, 1968, leave/retires/left
the firm, then he would nominate/authorize alternate persons and in case,
the authorized/nominated persons do not appear, then, he shall take the
responsibility. In the present case, even as per the complaint, the date of
inspection was 24.07.2014 and the analysis report had been submitted on
01.08.2014 and even the subsequent report had been submitted on
26.09.2014. A perusal of the licence (Annexure R-4) would show that the
said licence was valid from 01.01.2013 to 31.12.2014 and in the list of
responsible persons, the responsible person for quality control was shown
to be Rahim Aglodia, thus, it is apparent that Rahim Aglodia was
working with the manufacturing company on the date of the alleged
occurrence/offence. The said Rahim Aglodia has also been made as an
accused in the impugned complaint. The case of the petitioner would be
on a higher footing than the case of appellant No.2 in the judgment of
Hon'ble Supreme Court in M/s Cheminova India Ltd's case (supra) as the
appellant No.2 before the Hon'ble Supreme Court in M/s Cheminova
India Ltd's case (supra) was the Managing Director of the manufacturing
company against whom the proceedings were quashed whereas the
petitioner, even as per the case of the prosecution, is stated to be only a
Director of the manufacturing company.
Keeping in view the abovesaid facts and circumstances and
also in view of law laid down in the abovesaid judgments, the present
petition is allowed and complaint bearing No.4151 dated 20.04.2017
registered under Sections 3K(1), 17, 18, 29, 33 of the Insecticides Act,
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1968 read with Rule 27(5) of the Insecticides Rules, 1971 (Annexure P-1)
and also summoning order dated 20.04.2017 (Annexure P-2) passed by
the Chief Judicial Magistrate, Ludhiana alongwith all other consequential
proceedings arising therefrom qua present petitioner are quashed/set
aside.
All the pending miscellaneous applications, if any, shall stand
disposed of in view of the abovesaid judgment.
09.12.2022 (VIKAS BAHL)
Pawan JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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